Delhi High Court
Sh. Viraht Sahni Through His Power ... vs Government Of Nct Of Delhi & Anr. on 20 December, 2021
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 20.12.2021
+ W.P.(C) 10949/2021 & CM APPL. 33752/2021 (directions).
SH. VIRAHT SAHNI THROUGH HIS POWER OF ATTORNEY
HOLDER, SHRI SIDHANT KAPUR & ANR. ..... Petitioners
Through Mr. P. V. Kapur, Sr. Adv. with Mr. V.
K. Nagrath, Ms. Kaveri Kapur and
Mr. Jitender Kumar, Advs.
versus
GOVERNMENT OF NCT OF DELHI & ANR. ..... Respondents
Through Mr. Anupam Srivastava, Adv.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The petitioners have approached this Court inter alia seeking a
direction to the respondent no.1 for removal of an unauthorized
construction just outside their house/property bearing No. B-72,
Defence Colony, New Delhi. The petitioners submit that the structure
in question is a raised platform around a tree, which platform is
painted orange and some idols and photographs of Hindu Gods and
Goddesses have been placed thereon, photographs of which have been
annexed as Annexure P-1 to the present petition.
2. The grievance of the petitioners is that the aforesaid illegal
construction not only amounts to encroachment but is also causing
nuisance by allowing congregation of various elements indulging in
Signature Not Verified
DigitallySigned
By:GARIMA MADAN
Signing Date:21.12.2021
14:36:17
unlawful activities behind the said structure, which according to the
petitioners poses security hazards not only to them but also to the
public at large. It is the petitioner's case that the respondent no. 1 has
been negligent in discharging its duties and despite various
representations made by them, the said respondent has failed to free
the public land from the said encroachment.
3. On the last date, keeping in view the petitioner's plea that the
encroachment was not even a religious structure where any prayers
were being offered, this Court had directed the SHO of the area to file
a report regarding the number of visitors, to the site in question with
details of offerings, if any being made by them to the idols on the site.
It was also directed that the report would be prepared on the basis of a
vigil to be kept on the site by police personnel for atleast 24 hours.
The said report has been filed and the relevant extract of the same
reads as under:
"1) That in compliance with the order of this Hon'ble
Court dated 7th December 2021, I had deputed two
constables to maintain vigil on the subject "Chabutara"
constructed around a tree on the Bhishma Pitahmah
Marg, New Delhi. The constables were deployed for a
period of 24 hours from 8 AM on 8th December 2021 till
8 AM on 9th December 2021.
2) That I say the Chabutra contains some idols and
pictures of Hindu Gods. During this period neither
Pooja/Aarti was performed, nor anyone stopped to
worship the idols. There is no priest on the subject site
and no one offered any offerings to those idols.
However, some passer-by did fold hands before the
idols."
Signature Not Verified
DigitallySigned
By:GARIMA MADAN
Signing Date:21.12.2021
14:36:17
4. By placing reliance on the orders passed by the Apex Court in SLP
No. 8519/2006 on 29.09.2009, 07.12.2009 and 31.01.2018, Mr. P.V
Kapur, learned senior counsel for the petitioners submits that the
Apex Court as way back as on 29.09.2009 directed that no
unauthorized construction shall be permitted to be carried out in the
name of a Temple, Church, Mosque or Gurudwara etc. on public
streets, public parks or other public places. The relevant extract of the
said order reads as under -
"No unauthorized construction shall be carried out or
permitted in the name of Temple, Church, Mosque or
Gurudwara etc. on public streets, public parks or other
public places etc. In respect of the unauthorized
construction of religious nature which has already taken
place, the State Governments and the Union Territories
shall review the same on case-to-case basis and take
appropriate steps as expeditiously as possible" In respect
of the unauthorized construction of religious nature
which has already taken place, the State Governments
and the Union Territories shall review the same on case
to case basis and take appropriate steps as expeditiously
as possible"
5. He therefore contends that keeping in view the aforesaid directions
issued by the Supreme Court, the respondents had themselves
informed this Court on the very first date of hearing, i.e., 29.09.2021
that they are conscious of their duties to remove all unauthorized
constructions and had therefore assured this Court that they will take
immediate steps to demolish the aforesaid unauthorized construction.
However, the respondents have not only failed to carry out the
demolition but have now sought to take a wholly baseless stand that
Signature Not Verified
DigitallySigned
By:GARIMA MADAN
Signing Date:21.12.2021
14:36:17
the encroachment cannot be removed without the prior approval of the
Religious Committee constituted under the orders of Hon'ble the
Lieutenant Governor of Delhi (Lt. Governor) passed on 12.02.1991.
6. Learned senior counsel for the petitioners submits that the aforesaid
stand overlooks the fact that in 2009, the Apex Court had in no
uncertain terms directed that no such encroachment can be permitted.
Furthermore, any earlier directions to the contrary, passed by the
Hon'ble Lt. Governor in 1991 could not absolve the respondent of
their duty to take appropriate steps to ensure that no further
unauthorized construction takes place after 2009.
7. Without prejudice to his aforesaid submissions, he submits that even
otherwise, the unauthorized construction in question merely appears
to be an attempt by some unscrupulous persons to take possession of
the said land as the report filed by the SHO pursuant to an inspection
carried out under the orders of this Court dated 07.12.2021 makes it
evident that there is neither any priest available on the site nor are any
offerings ever being made to the idols on the site in question. He,
therefore, contends that the unauthorized encroachment would not
even qualify as a temple or a religious structure and therefore prays
that the respondents be directed to forthwith demolish the
unauthorized structure.
8. On the other hand, Mr. Srivastava, learned counsel for respondents
while not denying that neither any devotees nor any priest were found
at the site as per the report of the SHO, prays for time to send a
proposal for demolition of the encroachment in a proper format to the
religious committee for its consideration. He submits that in the light
Signature Not Verified
DigitallySigned
By:GARIMA MADAN
Signing Date:21.12.2021
14:36:17
of the orders passed by the Lt. Governor on 12.02.1991, no
demolition of any religious structure, whatsoever, can take place in
the city without the prior approval of the religious committee. Mr
Srivastava further draws my attention to the communication dated
18.10.2021 issued by the Home Department (Police-II) to contend
that once the relevant proposal is forwarded by the Public Works
Department to the religious committee, the same will be considered
expeditiously. Finally he submits that there is nothing in the directions
issued by the Apex Court in Union of India v State of Gujarat & Ors.
SLP (C) No. 8519/2006 which would in any manner nullify the
directions issued by the Lt. Governor and therefore prays that time be
granted to the respondents to refer the matter to the religious
committee for further appropriate actions.
9. Since from the rival submission of the parties, it emerges that the
respondents are justifying their failure to take their action against the
evidently unauthorized constructions by placing reliance on the orders
of the Lt. Governor passed on 12.02.1991 based on which the circular
dated 18.02.1991 was issued, it would be at this stage appropriate to
refer to the note containing the said order. The said note reads as
under:
"It was felt that the present system whereby the land
owning agencies take orders of L.G. directly on file
regarding demolition of religious structures on public
lands which are in the nature of encroachment needs to
be discontinued.
Henceforth a committee comprising of Secretary
(Home) Addl. C.P. Special Branch), Addl. C.P. of the
Range concerned and the representatives of the land
Signature Not Verified
DigitallySigned
By:GARIMA MADAN
Signing Date:21.12.2021
14:36:17
owning agency may be authorized to take such
decisions."
10.A perusal of the aforesaid note in itself shows that the circular dated
18.02.1991 on which heavy reliance has been placed by the
respondents was only to ensure that orders for demolition of religious
structure on public land are not directly referred to the Lt. Governor
and are instead referred to a four-member committee constituted
under the directions of the Lt. Governor. The aforesaid order,
however does not state that demolition should not take place even if
the same is contrary to the orders passed by a competent court of law.
In my opinion, the order issued by the Lt. Governor cannot be read
out of context as the same appears to have been issued so that the Lt.
Governor does not pass orders for removal of unauthorized religious
structures without taking into consideration all relevant factors for
which purpose, a four member committee was constituted. As noted
above, once the Apex Court had way back in the year 2009 directed
that no such unauthorized construction would be permitted by any of
the States or the UTs, in the name of any temples, church, mosque
etc., it was incumbent upon the respondents to ensure that these
directions of the Apex Court are meticulously complied with. In my
view, in the light of these directions issued by the Apex Court way
back in 2009 and lastly in 2018, the respondents could not have been
permitted to carry out any unauthorized constructions on any public
land. The encroachment in question which has taken place only on
account of the utter negligence on the part of respondent no. 1, is
clearly in blatant violation of the specific directions issued by the
Signature Not Verified
DigitallySigned
By:GARIMA MADAN
Signing Date:21.12.2021
14:36:17
Supreme Court. In the light of these facts, the respondents cannot be
permitted to take the plea that the matter still needs to be referred to
the religious committee for its approval. From a perusal of the report
of the concerned SHO noted hereinabove, it is crystal clear that the
aforesaid unauthorized platform is not really being used as a religious
structure as neither any prayers are being held there nor any offerings
being made nor is any priest available at the site.
11. I therefore do not find any merit in the submission of learned counsel
for the respondent that since the Home Department of Govt. of NCT
of Delhi had on 18.10.2021 has directed the PWD to submit a fresh
proposal after removal of structures expect the sanctum santorum
where the idols are placed so that the same can be placed for
consideration by the religious committee, this Court should grant time
to the respondents to place the proposal in terms of the directions
issued by the Home Department (Police-II), New Delhi before the
religious committee. Once it is the respondents' own stand based on
the report from the concerned SHO that the encroachment is on a
public land and is not being used for any religious purpose, I do not
see any reason as to why the said encroachment should be permitted
to continue any further.
12.For the aforesaid reasons, the writ petition is allowed by directing the
respondent no.1 to remove within 10 days, the aforesaid illegal
platform on public land, the photographs of which have been annexed
as Annexure P-1 to the writ petition. The respondent no.3 will render
full co-operation to respondent no.1 in carrying out the said
demolition and will provide the necessary police assistance if
Signature Not Verified
DigitallySigned
By:GARIMA MADAN
Signing Date:21.12.2021
14:36:17
required. However, since certain unclaimed idols and photographs are
lying on the site in question, the SHO Kotla Mubarakpur is directed to
ensure that the said idols and photographs are safely shifted to any
nearby temple in the vicinity.
(REKHA PALLI)
JUDGE
DECEMBER 20, 2021
acm/ms
Signature Not Verified
DigitallySigned
By:GARIMA MADAN
Signing Date:21.12.2021
14:36:17
